Boyd v. Boyd

• Decision Date: 08 July 1964
• Citation: Boyd v. Boyd, 228 Cal.App.2d 374, 39 Cal.Rptr. 400 (Cal. App. 1964)
• Parties: Hazel Jeanne BOYD, Plaintiff and Appellant, v. John H. BOYD, Defendant and Respondent. Civ. 10759.
• Court: California Court of Appeals

Page 400

39 Cal.Rptr. 400

228 Cal.App.2d 374

Hazel Jeanne BOYD, Plaintiff and Appellant, v. John H. BOYD, Defendant and Respondent.

Civ. 10759.

District Court of Appeal, Third District, California.

July 8, 1964.

Rehearing Denied July 30, 1964.

Hearing Denied Sept. 2, 1964.

Goldstein, Barceloux & Goldstein, Chico, for appellant.

Alan H. Thieler, Quincy, for respondent.

FRIEDMAN, Justice.

According to her complaint, plaintiff's first husband died in 1956. Following his demise she commenced receiving monthly payments of $75 from the Veterans Administration and $78.80 as a social security allowance. Plaintiff became engaged to defendant in February 1959 and married him on December 17, 1961. After two days defendant left her and has since refused to live with her and to support her. As a result of the marriage the Veterans Administration and the social security authorities terminated her monthly payments. Her amended complaint, in three counts, seeks an award of damage. The core of Count I consists of allegations that defendant breached an express oral promise to live with and support plaintiff. Count II is based on the allegation that, with full knowledge of her government payments, he fraudulently made promises to live with and support her without any intention of fulfilling these promises. Count III alleges that he negligently married her or negligently left her without reasonable care as to her support.

The lower court sustained a general demurrer to this complaint and plaintiff failed to amend. Judgment was entered for defendant and plaintiff appeals. The allegations of the complaint are deemed admitted for the purpose of this appeal. The problem on appeal is whether these claims are barred by Civil Code sections 43.4 and 43.5, abolishing so-called 'heart balm' actions. ¹

Section 43.5, the original statute outlawing this group of actions, was enacted in 1939. Subdivision (d) aimed at so-called breach of promise suits, but its scope was sharply confined in 1956 when the Supreme Court held that it barred only causes of action for breach of contract, not actions resting upon allegations of a fraudulent promise of marriage. (Langley v. Schumacker, 46 Cal.2d 601, 297 P.2d 977; see Note 8 Hast.L.J. 210.) In response, the 1959 Legislature adopted section 43.4, barring actions based upon fraudulent promises.

Most of the reported decisions collected in annotations to sections 43.4 and 43.5 involve head-on attempts by plaintiffs' attorneys to crush rather than avoid the statutes. In Langley v. Schumacker, however, counsel succeeded after several amendments in drawing a complaint which was found to be outside the scope of section 43.5. Count I of the present complaint sounds in contract rather than tort. It is undoubtedly framed on the theory that section 43.5(d) bars only actions for breach of contract 'to marry,' not affecting suits where the marriage has taken place and not affecting damage claims for breach of a collateral promise, such as the promise to provide support. Thus we are called upon to decide whether subdivision (d) of section 43.5 abolishes actions for breach of marriage promise: (a) where the defendant jilted the plaintiff after instead of before the marriage ceremony; (b) where an express oral promise of support was made and violated; (c) where plaintiff surrendered or lost valuable income in reliance upon the violated promise.

Does the marriage ceremony take the case out of the class of suits prohibited by section 43.5(d)? In this statute the Legislature expresses a policy against actions for 'breach of promise of marriage.' Arguably, the quoted phrase refers to the classic case of the broken engagement, the anticipatory repudiation of a promise to marry. Alternatively, it may embrace any class of damage suits originating from the breach of marital vows made before or as part of the marriage contract. In our view the occurrence of a marriage ceremony does not affect operation of the statute. A breach of promise is a failure to do what one promises to do. Whether the defendant makes a promise 'of marriage' or 'to marry,' he contracts not only to undergo a marriage ritual but also to fulfill matrimonial obligations and expectations. The latter are breached by post-nuptial as well as antenuptial renunciation. The New York courts have taken a similar view, holding that occurrence of a marriage ceremony does not affect operation of the statutory bar. (Bressler v. Bressler, Mun.Ct., 133 N.Y.S.2d 68, 42; Grunberg v. Grunberg, 199 Misc. 249, 99 N.Y.S.2d 771.)

From a teleological view the matter is somewhat more doubtful. Section 43.5 is designed to eliminate a class of lawsuits which were frequently used for extortion, which promoted fraud and perjury and encouraged marriages motivated by fear of a lawsuit instead of love. (See Ikuta v. Ikuta, 97 Cal.App.2d 787, 789, 218 P.2d 854; 13 So.Cal.L.Rev. 37; 18 Chicago-Kent L.Rev. 198, 202; 158 A.L.R. 617-618.) These purposes are less apparent where the defendant has not jilted his bride at the church door but has led her to and from the altar. In the latter case the existence of marriage vows is a conceded fact, not resting on perjury or the uncorroborated testimony of a vengeful plaintiff.

The policy objective of section 43.5(d) becomes more evident in the light of the position taken by the 1959 Legislature, when it enacted section 43.4. The latter, it will be recalled, was adopted following the decision in Langley v. Schumacker, supra, which was featured by a four to three division among the members of the Supreme Court. In that case the parties in fact had gone through a marriage ceremony. From the standpoint of the majority holding (that the statute did not bar a fraud action), the marriage ceremony was unimportant and received no comment. Three dissenting members, speaking through Justice Spence, took the position that fraud actions were within the statutory bar, which applied whether or not the parties had undergone the marriage ritual. With these opposing positions fully revealed, the 1959 Legislature adopted section 43.4, which was drafted to embrace a 'fraudulent promise to marry or to cohabit after marriage.' Thus the Legislature effectually codified the minority position in Langley v. Schumacker, not only barring actions sounding in fraud but also demonstrating a purpose to embrace postnuptial breach. This 1959 legislative expression, while not binding, is instrumental in ascertaining the scope of the earlier statute. (California Emp., etc., Comm. v. Payne, 31 Cal.2d 210, 213-214, 187 P.2d 702.)

We consider next the impact of the plea of an express promise of support and the claim of special monetary loss.

The marriage institution comprehends an array of interrelated commitments and expectations. These commitments include the usual incidents of matrimonial existence such as mutual affection, companionship, sexual relations and the traditional distribution of domestic activities. The notion of financial support by the male is implicit in marital status. Even in this era of working wives the husband has ultimate economic responsibility. In outlawing breach of promise actions, section 43.5(d) aims at lawsuits in which one party or the other seeks financial compensation for loss of this group of expectations and commitments.

From this bundle of expectations and commitments Count I of the complaint plucks the single commitment of economic support, in this case alleged to be an express oral promise. Its isolation from the bundle gives it no added sancity, no added enforceability. In this case, says plaintiff, the defendant made and broke an express oral promise, and this breach-- not the breach of a promise of marriage--is the gravamen of the action. A husband's promise of support is an implicit term of the marriage relationship. His traditional obligation to support his wife is imposed by law. (Civ.Code, secs. 174, 242; Continental Casualty Co. v. Pillsbury, 181 Cal. 389, 184 P. 658, 8 A.L.R. 1110; Garlock v. Garlock, 279 N.Y. 337, 18 N.E.2d 521, 120 A.L.R. 1331; see Note 15 So.Cal.L.Rev. 117; The California Family Lawyer (Cont.Ed.Bar, 1961), vol. 1. p. 160.) The implicit obligation of support is just as real, just as binding, as an express avowal. The measure of the man's legal responsibilities receives no enlargement when he superimposes an articulate commitment on the identical implied obligation. The law calls on him just as loudly to fulfill one as the other. His breach of the express promise subjects him to as much--and as little--responsibility as his violation of the implied promise.

Breach of promise actions generally aim at financial vindication of the entire group of marital expectations and commitments. (See 11 C.J.S. Breach of Marriage Promise § 40, pp. 808-810; 12 Am.Jur.2d, Breach of Promise, sec. 26, pp. 726-727.) That one plaintiff seeks compensation for outraged affection or loss of companionship, while another expresses loss of expected support, is not a pivotal factor. ² Loss of support may arouse more sympathy than balm for outrage and humiliation, but the statute no more allows the former variety of damage than the latter. Thus a plaintiff may not, by selecting frustrated economic expectations as the sole item of damage, escape the bar of the statute.

The cancellation of plaintiff's government payments represents a substantial variation on the damage theme usually sounded in breach of promise actions. As a result of defendant's breach, plaintiff has suffered not only the loss of future support from defendant, but the loss of assured income from independent sources. On the face of the matter defendant's wrong has caused genuine hardship of a special kind which is quite distinct from her loss of the standard group of marital advantages. It has been noted that statutes outlawing such suits undoubtedly deny relief in many cases of serious and genuine wrong. (Morris v. MacNab, 25 N.J. 271, 135 A.2d 657, 72 A.L.R.2d...